Communicating Europe : transparency and democratic EU governance

Juliet Lodge

Jean Monnet European Centre of Excellence

University of Leeds

LS2 9JT ( UK ) j.e.lodge@leeds.ac.uk  44 113 343 4443

Abstract:

This paper dissects the concept and application of transparency goals in the EU. It outlines problems arising out of the security agenda for the concept of transparent democratic EU governance. Viewed through the prism of structural, procedural and socio-psychological lenses, the pursuit of transparency involves challenges to the EU’s authority structures, accountability, accessibility, and attentiveness. A re-conceptualisation of transparency is suggested to improve understanding of how its seemingly indiscriminate advocacy challenges and advances change in EU governance as the EU enlarges.

Keywords:  transparency, authority, democratic governance, freedom, security and justice, citizen rights.

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Transparency and EU governance:

‘The Conference considers that transparency of the decision-making process strengthens the democratic nature of the institutions and the public's confidence in the administration. The Conference accordingly recommends that the Commission submits to the Council no later than 1993 a report on measures designed to improve public access to the information available to the institutions.'
Maastricht Treaty Declaration no 17

 ‘The policies and practices affecting the fundamental freedoms and liberties of people in the EU must be subject to effective and transparent judicial, parliamentary and public scrutiny and human rights protection. This is not the case at the moment. It is a prerequisite of a democratic Europe that these standards now be put in place’
Tony Bunyan, Statewatch, Nov 2002

 ‘Openness is one of the key priorities of the European Commission.’
EU Commission, Serving the People of Europe , 1/2003:12

Introduction:

Arguably the idea of ‘transparency’ in EU governance has been progressively but not completely mainstreamed since it began to creep up and onto the EU’s agenda in the early 1990s. This paper considers the issue of transparency and EU governance. It begins by placing transparency in context and illustrates its use in practice. It argues that it is implicit in many of the arguments on EU reform and suggests how it may be re-conceptualised on the eve of enlargement and the reform of EU governance.

Transparency means everything and nothing.   There is a lack of clarity as to the real purpose of advocating transparency in the EU. For heuristic reasons transparency will be portrayed as a multi-dimensional adventure in European integration where transparency presents challenges to: 1.the EU’s structures (authority reconfiguration); 2. accountability and values (rectification of the democratic deficit); 3. accessibility (procedural gates to information); 4. vigilance and attentiveness (a listening EU), and emergent forms of e-governance.

The concept of transparency is multifaceted. It slams into the debate on the nature and contours of post-parliamentary debate about a supranational system where formal and substantive democracy is contested, as much if not more so than inside the member states. Advocacy of transparency implies that communication about ‘ Europe ’, what the EU is ‘doing’ is essential to sustaining democratic governance. Without contestation, democracy dies. Making the EU open and transparent is one means to that end.  The aim is therefore to begin by placing the constitutionalisation of transparency as an EU ideal and goal into its historical and political context with a view to devising a way of unpicking and re-conceptualising  transparency in order to explain how and why it is used in the EU for different ends all associated with an over-arching goal of communicating to citizens as part of a process to enhance democratic governance in an enlarging EU.

The  term ‘transparency ‘ can be used in different ways, in different settings for tactical and strategic purposes to advance the cause of democratic governance. Transparency can be conceptualised as  multidimensional rather than as a continuum from complete secrecy to absolute openness.  The tactical use of ‘transparency’ relates most closely to the idea of making the EU accessible, visible and close to its citizens – initially to counter traditional scapegoating by member governments of the Commission. This converges with procedural aspects of public access to documents. The strategic use of transparency conflates it with constitutionalisation in the EU, and with normative values and ideals central to democratic governance. The ‘operational’ use (or denial) of transparency muddies the picture as the first two converge under pillar III (on internal security matters which often require secrecy to ensure successful prosecution of crime).

1.AUTHORITY RECONFIGURATION

1.1 Transparency : a challenge to EU institutional structures

Advocacy of the ideal of transparency in the EU has many sources. All imply that transparency is a remedy for some existing deficit : whether structural, procedural or socio-psychological.  Potent signs of deficit are readily identifiable at the structural level where transparent  inter-institutional reform is advocated to redress the deficit.  Such reform remains highly controversial.  Transparency challenges EU governance directly.  It challenges the Council to accept the European Parliament as an equal and to be open when acting as a legislature.  It challenges the Commission to be open during the preparation of legislative proposals and programmes. It challenges the European Parliament and Court to find procedures and ways of inserting themselves into and overcoming their exclusion from pillar III. Transparency over the structural division of power is emphasised too by the Convention on the Future of Europe draft treaty under Title III on the Union ’s competences.

Viewed through the prism of structural, procedural and socio-psychological lenses, the pursuit of transparency involves challenges to the EU’s authority structures, accountability, accessibility, and attentiveness. Authority structures are challenged because measures evade democratic scrutiny, control and safeguards. Accountability is challenged because of the absence of sufficient parliamentary input and justiciability before the EU courts. Accessibility is challenged because access to documents and information has been denied (sometimes for good operational reasons, sometimes for unclear reasons). Attentiveness has been challenged because ironically while the Commission has sought to communicate Europe to the EU’s residents, those responsible for making pillar III policy (whether directives, framework decisions, or flanking programmes) are not required to be visible, accountable and accessible. They do not need to attend to the voice of citizens. Pillar III excludes deliberative investigative co-decision by citizens’ representatives in the European Parliament, even after the Nice Treaty reforms.  Yet, it covers many of the issue areas of greatest salience to individuals.  Citizens remain largely uninformed about steps in these areas; uninterested in the impact of measures on democratic practice and, until it is compromised or reduced, unaware of how potentially their own personal and collective liberal democratic freedom might be constrained. Non-governmental actors – the Guardian newspaper and Statewatch – rather than citizens have challenged the EU to honour its commitment to’ transparency’. 

Transparency and openness are frequently portrayed as synonymous.  Neither was originally entrenched as EU obligations in the founding treaties. That they became so resulted from political imperatives that reflected some politicians’ beliefs that the EU had to be seen to be democratic and open at a time when the way in which it was seen and/or believed to make policy was depicted as at best opaque, and at worst verging on the devious.  Declining public regard for the EU – as exemplified by falling turnout in Euro-elections, low interest and knowledge about the EU, and negative votes in referendums in some countries (Rasmussen) on treaties that deepened political integration (from Maastricht onwards) – provoked sufficient concern among EU elites to lead them to advocate  structural changes and procedures to reveal the EU’s openness and transparency.  Somewhat disingenuously, member governments’ put the onus on the Commission to prove its transparency when the Council was the source of structural obfuscation, a lack of accountability and attentiveness to MEPs or the public. Commission documents, statements and politicians’ speeches advocated a need to make the EU visible, accessible, and ‘close to citizens’ (Alston & Weiler). In practice, this involved enhancing the European Parliament’s role, especially vis-à-vis the Council of Ministers, and Commission-led procedural changes to develop pro-active channels of communication to EU citizens. The goal was to show the EU as open, accessible, attentive and accountable – all ideas embedded in the affective values and ideals associated with democratic EU governance.

The  constitutional and affective elements of openness and transparency rose up the agenda throughout for two reasons. First, because the inter-institutional change in the balance of legislative authority meant that MEPs had an absolute need to get access to information (in practice draft and amended draft proposals of the Commission and the Council) if they were to become effective legislators.  Second, because the Single Act reforms could only be implemented if ratified in line with member states’ national constitutional provisions.  This meant that referendums had to be held in several states. A negative vote in just one could jeopardise all constitutional reform and therefore the attainment of the very objectives that those reforms were designed to facilitate.  The public were therefore brought into a process which affected the constitutional design of the EU but were drawn in without being properly informed or involved[1].  Constitutional and arcane documents that formed the basis of referendum did not inspire public trust let alone a sense of affective identification with the EU.   The EU was thereby depicted as lacking both by the media and by governments who were largely to blame for this state of affairs. Not surprisingly, critics lambasted the EU as a democracy built on sand (Bunyan, Best et al.)

1.2             Transparency : a challenge to inter-institutional procedures

Reforming EU institutions, and notably the balance of power between the Council and European Parliament to prevent the Council ignoring MEPs was sensitive and difficult so MEPs supplemented constitutional reform by championing imaginative supplementary procedures based on the premise that anything not forbidden by the treaties was implicitly allowed. The European Parliament interpreted its Rules of Procedure innovatively to engage the Commission and Council progressively in dialogue and to advance the EU’s institutional re-configuration in the expectation of later entrenchment in treaty reforms.  This process  culminated in the Convention on the Future of Europe.

Transparency was justified to uncover ‘what was going on’. It first took shape through procedures to enhance access to information about impending legislative initiatives, proposals and ideas being contemplated in the Commission both for MEPs (famously disregarded by the Council of Ministers), elites and for the general public. The Commission’s procedural response was to show that it was open (by granting access to documents, and developing ‘green paper’ pre-decisional consultations). This relied on it (and later other EU institutions) operating in ‘response’ mode to requests from outside parties for documentation.   This was presented legislatively in the shape of proposals to facilitate public access to EU documents (discussed below).

Originally this  implied that in the course of legislative readings, MEPs should have the same access as Council members to the most up-to-date draft proposals on which decisions were to be reached, in order to ensure that their deliberations related to the actual not past draft documents (and so enhanced efficiency and effectiveness of parliamentary scrutiny and deliberations).  This was seen as especially important so long as the Council, when acting in legislative mode, continued to meet in secrecy. Not until 2000 was the Council General Secretariat required to make accessible to the public the provisional agendas of all Council meetings and its preparatory bodies in respect of cases where the Council acts in a legislative capacity[2] .  By 2001, the Council was to publish as many of its documents as possible on its website[3] (something done too by the Commission and the European Parliament). Technological advance moved this forward to e-library-type depositories of information to be sought and accessed, into a form of interactive ‘listening’ to citizens by early 2000.

1.3        Transparency : a challenge to the implicit agenda - communicating with citizens

Communicating transparency to citizens was especially difficult given existing information deficits and disinterest over what the EU was for, what its institutions did, or what policies were in prospect and how they could be justified.   The implicit agenda was one of a-political persuasion, of engaging the Commission in communicating positive messages about European governance in an anodyne, non-prescriptive, non-partisan a-political way. Ideological advocacy of political options was seen to be the essential preserve of political parties engaging in political mobilisation for the purposes of electing the European Parliament.   This overly simplistic view overlooked the role of national parties (at all levels) and that of social movements.  It reflected the extreme sensitivity surrounding the idea of the Commission having a role to play at all vis-à-vis people living within the territorial boundaries of the EEC/EU at a time when the concept of EU citizen was political dynamite, people in the EU were expected to hierarchically order their loyalties with  loyalty to the nation state at the apex as their primary political attachment.  Any challenge to that was exceptionally controversial and seen as interference to Europeanise the public  (Lodge & Herman,63)

A second element to this implicit agenda stemmed from the bad press that EU institutions received in many member states. They became the easy scapegoat for decisions taken by their governments’ in the Council of Ministers which were likely to be contested or unpopular domestically.  Attempts were made to counter  the EU Commission’s image as a marauding, antiquated, closed bureaucracy by proving that it was, on the contrary, open, transparent and accessible.  Documents not readily available domestically were there for the asking at EU level, in theory if not always in practice. If the Commission was denied a right (and personnel) to communicate with the people directly, it could at least show that it was accessible and would provide paper documentation.  Its porte parole (official spokesman) on the other hand would give briefings that were factual, not prescriptive, rarely defensive, and rarely rebutted dis-information.  The latter function was seen as political and sensitive and open to the charge of interference in the domestic affairs of a sovereign member states if the head (of what were until the late 1990s called Commission Press and Information Offices in the member states) of Commission offices in the member states publicly rebutted misinformation or presented an EU view.  This was a particular problem in the UK until 1997. However, any such self-censorship ultimately conflicted the goal of showing that the Commission was open and listening attentively, and responsively encouraging the emergence of a genuine European public space or civic sphere.

Council secrecy contrasts sharply with the Commission’s attempts to fulfil its obligations as guardian of the treaties and promoting an ever-closer union. The EU Commission developed plans to speak directly to citizens and then to show them that it was listening to their views. These began with Commissioner Oreja’s letters to citizens, through to the increasingly common but relatively novel e-chats with Commissioners, and the Commission’s Europe Direct and  ‘Your Voice in Europe ’ programmes. While communication and the creation of a common EU identity may be linked, the Commission’s approach has been based on communicating that commonality through common messages translated into EU languages and communicated on the same footing across the member states (and in practice globally), regardless of the biases incurred by self-selecting respondents anywhere in the world. This is not the place to enter the cultural theory debates (de Swaan, Douglas and Wildavsky) about whether and how linguistic plurality might inhibit the emergence of an EU-wide public sphere, or whether a common language might hasten EU-wide communication between social and political actors. Rather it is to stress that measures to promote procedural transparency have had far-reaching structural implications that even go beyond their impact on inter-institutional communication and information sharing. However, a corresponding democratisation of responsibility (Phillips,180) remains elusive and in the EU remains indirect and mediated via MEPs.

That such an ‘information/ communication’ role had far more significant constitutional implications that the rather limited transparency procedures on accessing public documents suggested was either not recognised, ignored or obscured by preoccupation with the bigger problems for EU institutional capacity raised by prospective, rapid enlargement to states whose democratic credentials were contested and changing (Mineshima,74-5)  Cultural theorists offer a particular (and important) gloss on this in advocating a two or three dimensional conceptualisation of democracy but this is outside the scope of the paper (Thompson, Mamadouh). For our purposes, it is enough to stress that any inter-institutional procedural changes undertaken under the guise of promoting the cause of legitimacy through the quest for openness and transparency in practice had important consequences for re-configuring the inter-institutional balance of authority, accountability and responsibility.

Accompanying the ‘public eye’ agenda for communicating Europe to the often quiescent, disinterested public and sometimes equally quiescent media  was a constitutional one whose logic emanated from politicians anxious to entrench a balance of political power among the EU institutions in a constitutional document that would be recognised as such by the public. 

2. Transparency – a challenge to accountability and democratic legitimacy

2.1    Rectifying the democratic deficit

Historically,  transparency in the EU (and the EEC before it) was interpreted contextually in terms of flaws in the original constitutional design. ‘Transparency’ was used as a justification to change the relative inter-institutional balance of power between the un-elected Council of Ministers and the European Parliament (appointed from the membership of national parliaments until the first direct elections in 1979).  References to democratic legitimacy gaps and the ‘democratic deficit’ related specifically to the negligible power and minimal influence that the European Parliament’s members (MEPs) could exert in respect of the content of legislation initiated by the Commission and adopted eventually by the Council of Ministers acting in legislative mode.  Direct elections were seen as the key to reducing the democratic deficit and enhancing the EU/EEC’s democratic legitimacy. The phrase ‘direct elections’ was often used as shorthand to subsume several attendant ideas. These referred primarily to constitutional reform to expand the European Parliament’s authority progressively to imbue it with legislative power.   This implied an eventual step change in the relative powers of the European Parliament and the Council of Ministers vis-à-vis each other and implicitly also vis-à-vis the Commission whose place in the inter-institutional design would thereby also change behaviourally and potentially constitutionally. Viewed through structural prism of the inter-institutional balance of legislative power, the EU’s imperfect democratic credentials had to be rectified to close the democratic deficit at least at the supranational level and enhancing EU legitimacy (Corbett, Chrysschoou, Weiler, and Smith)[4].

Traditionally in western Europe, democratic governance has been associated with open government, checks and balances in the exercise of government, liberalism and individual freedoms, espoused and expanded the Single European Act’s commitment to the ‘Four Freedoms’ (of movement of goods, persons, services and capital), the EU’s Charter of Fundamental Rights, and the draft Treaty for a Constitution for Europe of the Convention on the Future of Europe (CFE). Spinelli and former Commission President Jacques Delors  shared a sense that the goals of European integration had to be made explicit and visible: that the ‘governed’ had to recognise and see the ‘government’ as just and legitimate, preferably in a constitutional document recognisable as such by the public.  They were not alone in thinking that interim procedural rather than constitutional steps would be needed to re-configure authority gradually and attain that goal. 

2.2 Boosting accountability through efficiency

In the EU secrecy is still associated with decision making behind closed doors by the Council of Ministers. It is structural and deliberate.  Openness in the Council is associated with it working in legislative mode.  Secrecy over policymaking more generally would seem incompatible with cherished notions of democratic governance in the EU.  Advocacy of transparent procedures in legislative and policymaking processes has been coupled with the idea of using it instrumentally, not to advance accountability as such, but to improve policymaking and the allocation of scarce financial resources synergistically among too often compartmentalised policy areas.

The European Parliament’s 1984 Draft Treaty establishing the European Union and the Single European Act advocated institutional and procedural reform to enhance efficiency. To this end, the European Parliament’s legislative authority was progressively augmented over an increasing number of policy areas, first under the cooperation procedure and then under co-decision. Policy objectives now cut across the pillars. Procedural legislative uniformity is elusive. Different procedures contrive to exclude effective parliamentary inputs. Parity between the European Parliament and the Council is imperfect. Efficiency is compromised both in respect of distributive policy and in terms of the ability and right of MEPs (citizens’ watchdogs) to have equal access to information and equal say over policy inputs and outputs. Yet, if the two are distinct but linked parts of a bicameral legislature's tactical obstacles (such as Council refusal to operate openly and share information with MEPs) impair efficient, let alone democratic, government. The denial of a legislative role for the European Parliament under pillar III is inimical to efficient and democratic governance since issues, like immigration, cut across pillar one where it enjoys parity with the Council. 

Over the years, however, the European Parliament has used its right to set its own agenda and Rules of procedure to acquire greater procedural transparency from both the Commission and the Council, inducing greater sharing of information. It has successfully secured their incorporation and codification into subsequent treaty reforms with successive enlargements of the EEC/EU.  However, EU enlargement – even from 12 to 15 member states, demanded radical constitutional reform, challenged governments to present a consensual notion of the future of supranational EU governance to the public.  The contestation over EU governance, their role and that of EU institutions in it, was no longer to take place behind closed doors. The structural element of the democratic deficit had been supplemented by acceptance of a role for the people in shaping the re-configuration of authority and the content of policy.  The referendums on the Maastricht , Amsterdam and Nice treaties underscored the need to secure public assent, to inform the public, communicate with the public to ensure public acceptance and the legitimacy of the outcome. Transparency in EU governance means that basic requirements of openness must be honoured procedurally at least, and preferably constitutionally.  The procedural route paved the way for constitutional re-configuration that remained unrealised until 2002.

While procedural transparency improved public access to information, its operation in practice as a public conduit for accessing EU information, affected values and political behaviour and helped both to promote a re-configuration of inter-institutional relations, advance a redistribution of political authority and facilitate the emergence of an EU public space. This process was about more than giving the EU a ‘human face’, something consistently advocated by successive Danish Presidencies since the December 1973 Copenhagen EC summit spoke of ‘human union’; and flagged up during the next decade by the Adonnino Committee’s recommendations for a People’s Europe (Bellamy & Warleigh, FØllesdal & P Koslowski, de Burca & J Scott, Keatinge). The initial steps on procedural transparency have been boosted by the technical (web-based) means for shaping it and inevitably have been harnessed rather uncritically by EU institutions with a view to creating an EU civic or public sphere.

3. Transparency a challenge to accessibility

3.1 Open or secret – the procedural gates to information

The idea of a public sphere implies that citizens are able to communicate and have equal rights vis-à-vis the state/authorities who in turn have to justify themselves to gain support (Eriksen & Fossum.2002) and legitimacy.  Participatory democratic idealism combined with an agenda to facilitate effective and informed public engagement both directly and indirectly via MEPs and other agencies. Since effective engagement depended on a degree of political mobilisation and especially access to relevant information, the question of who had a right to access information assumed importance.  Member states differed among themselves over officials’ rights of access to pre-decisional papers relevant to ongoing EU proposals as well as over what constituted an official secret and what was to be in the public domain.

The idealistic view that increased public knowledge about the EU would lessen public distrust, disaffection, and disinterest in the EU underlay efforts to make the EU more visible, open and accessible.   Initially, at the simplest level, this involved boosting business awareness of the opportunities created by the Single Market Programme, in part through the creation of ‘relays’ of Euro information, and one-stop shops.  Information about the EU was to be presented more attractively and less ‘bureaucratically’. EU ‘citizens’ were to be made aware of their ‘rights’. [5]  This conceived of end-users as passive receivers of information. How they might transform it for active political purposes was neglected even though the mere act of accessing information implied activity on the part of the end-user.

EU institutions acquired a particular role and responsibility for facilitating and shaping communication across the emergent transnational socio-psychological EU public space.  Making information about the EU more readily accessible was but a first step. From 1994 onwards, accessibility was defined in a way that conflated accessibility and transparency with the broader, but arguably implicit and potentially contentious, agenda of freedom of information.  The implications for the public and for the nascent, supranational political culture are extensive, and nowhere more so than under pillar III. The Tampere European Council proposed establishing a ‘Scoreboard’ to record progress on pillar III proposals every six months. The first appeared under the French Presidency in November 2000 but its updating is haphazard.[6] If it is assumed that transparency implies that decision-makers are accessible and open, then it is easy to infer that any denial of access to information implies that they have something (devious) to hide.

Showing the EU as ‘open’ and having nothing to hide, however, was not the same thing as having an officials secrets act or a freedom of information act. EU policy areas are littered with instances of non-transparency, For instance, restrictive interpretations of transparency apply in respect of direct or indirect, wholly or partly, state-owned undertakings’ obligations of financial transparency which is defined in terms of transparency to the Commission (Art 86(3) EC. Although outside the scope of this paper on transparency as it relates to governance, these are nonetheless worth noting.

The Dutch government eventually secured the inclusion of a ‘declaration’ on transparency in the Maastricht treaty after acrimony greeted the Commission’s proposal in 1992 for the Council’s draft regulation on transparency. Some felt this was far more extensive in scope than member governments’ official secrets acts which related primarily to internal security, policing and defence (Statewatch No 13, 2002).  The Commission withdrew this proposal before the Edinburgh summit, and put the issue therefore in the member governments’ court. However, it still remains relevant because it dealt with both external procedural aspects of public access to internal documents, and also to internal official access to the same and related documents. It defined openness in terms of restricted access (Lodge, 1994). It prescribed the vetting of Commission and Council staff who were to have access to ‘sensitive information’ and classified documents[7].. Member governments had a vested interest in not bringing these matters to their national parliaments’ as well as the public agenda at a time when they were preparing the ground for the 1996 Intergovernmental Conference that later led to the Treaty of Amsterdam[8],  far closer and more extensive co-operation under pillar III and a partial communitisation of pillar III (Monar)[9]. Not until the Amsterdam treaty in 1997 was transparency to feature officially and then only after more dispute among the member states.

Accessibility the facts:

Directives lay out the principles and grounds governing the granting or refusal to institutions and individuals of access to documents. Each institution provides public access to a register of documents. (Whether a document goes onto the register or not is subject to public scrutiny and discrepancies can arise between the different institutions over whether or not a document should be publicly accessible[10]. Moreover, each institution’s own rules of procedure governing decisions on the accessibility of documents can be tactically used, or altered.  The European Court of Justice ruled that, before the Treaty of Amsterdam, EU institutions were entitled to govern citizens’ right of access to documents through their internal decision making rules rather than by constitutional legislation (Peers).

Since the entry into force of the Amsterdam Treaty, efforts to enhance EU accessibility and transparency have been intensified under the guise of bringing the EU ‘closer to the citizens’. This often-controversial process goes beyond the code of conduct for public access to Council and Commission documents[11]. It eventually led to a regulation under Article 255 of the EC treaty[12]. This redefines the principles, conditions and limits on grounds of public or private interest governing the right of access to documents, attempts to facilitate the easier possible exercise of the right to access and promotes measures on good administrative practice distinct from the Kinnock reforms of the Commission.  Of note was the decision in 2001 on the internet presentation of legislative texts free of charge under the EUR-Lex portal common to the institutions.[13]

In common with national governments, EU institutions proscribe access to information that may damage their interests or compromise financial competitiveness, inter alia.  This is permissible under EU ‘exception’ rules.  The EU courts (First Instance and the European Court of Justice) can annul an institution’s refusal to release documents but they cannot order it to release them.  The institution may then refuse access to the documents on other grounds.  Exceptions are permitted in the case of documents defined as ‘sensitive’, where disclosure would compromise the protection of public interest (particularly public security, defence and military matters, international relations, the financial policy of the Community or a Member State), the protection of privacy, commercial interests of a natural or legal person, court proceedings, and inspections and audits, unless there is an overriding public interest in disclosure (Peers, 6). Applications for access to documents have to be processed within fifteen working days from the registration of the application, and an annual report is published which also provides a reasoned record of cases in which access was refused, and the number of ‘sensitive’ documents in the register.

The counterpart to access to documents, however, denial of access. A number of important cases, first brought by the Guardian newspaper, led to reforms and the establishment of basic principles that have to be honoured.  Their timing was crucial. It coincided with journalist John Carvel’s challenge to Council confidentiality (the Guardian case) as highly controversial steps were being taken under pillar III to complement the realisation of the Four Freedoms (notably of persons) with measures to:- control personal freedom of movement, especially of third country migrants and nationals; measures on immigration, asylum, refugees, data collection – such as SIS and Eurodac ; and within three weeks expanding the remit of the European Drugs Monitoring Unit (set up officially in June 1993) from data collation to combat crime in conjunction with the nascent Europol project group.(Lodge,2002) Whether it is supposed that there was a conspiracy to conceal in the Council or whether lack of experience deterred disclosure, it may be concluded that for political and tactical reasons, non-disclosure seemed preferable to openness. This cannot be excused by pleading that these sensitive measures in  46 documents may have constituted an electoral liability for governments concerned with issues of EU democratic governance around the time of the 1994 Euro-elections and the 1996 Intergovernmental Conference. Equally, the conflict between national constitutional guarantees (such as Sweden ’s)on openness and private privacy was not fully appreciated (Steele,22).

It is easy to portray transparency in terms of a conspiracy agenda of concealment: internal security decision-makers, it could be argued, need ‘secrecy’ and minimal public or parliamentary scrutiny to maximise the chances of operational success[14]. However, some of the strategic policy decisions they make not only involve public expenditure (which should be subject to scrutiny in a democracy) but affect individual rights. For example,  the creation of an EU border guard either as a military force or as a civilian force is a matter of public interest and should not evade public scrutiny. Proper scrutiny implies access to necessary information and thus  greater openness than had hitherto been the norm.

Since the effective prosecution of internal security operations normally requires secrecy, it is hard to prove that ‘secretising’ internal security is deliberate even though numerous transparency and accountability deficits exist which the existence of an EU Ombudsman alone cannot erase. Openness remains imperfect : the 1993 transparency decision in respect of access to documents which entered into force on 1 March 1995   does not extend to transparency over governments’ positions on legislative proposals before the Council has taken its decision.  However, the European Parliament secured a degree of access to sensitive Council information in the sphere of security and defence policy via an inter-institutional agreement (OJ C 374 29 December 2001, p.1)to implement the May 2001 agreement on public access to European Parliament, Council and Commission documents (OJ L145 31 May 2001,p.43.).  Additional measures were adopted in October 2002(OJC 298/4 30 November 2002 ) including strict provisions for a specially designed meeting room for holding such meetings (OJ L 101 11 April 2001 ,p.1). Officials and MEPs have to be vetted and are subject to a ‘need-to-know’ principle under articles 5-11.

While the drivers for transparency came from different directions, they converged at the point where constitutionalising EU governance for an enlarging EU became the big game in town.  Constitutionalising a commitment to transparency seems desirable in an enlarging EU where constitutional principles have to be enshrined as states with different (and totalitarian anti-thetical) political regimes and cultures join and have to acclimatise themselves to EU political practice and culture (Curtin, Shaw 2000a). However, operational imperatives to enhance EU efforts and agencies’ attempts to combat organised international crime effectively almost immediately meant compromising the ideal of transparency in giving effect to the internal acquis and pillar III : access to information of use to criminal (or even corrupt law or policing agencies in applicant states) organisations had to be prevented.  This was permitted by the 1994 code. However, it was questionable whether it was also intended to mask a lack of constitutional/structural accountability over EU internal security matters.

The idea that the EU should acquire competence over internal security matters was and remains highly controversial since the ability to manage internal security successfully and independently is seen as one of the traditional benchmarks of a state’s government’s claim to sovereignty. It is not an area where openness and information sharing and communication with other governments and supranational agencies would be seen as desirable. It is, however, an area where operational requirements for secrecy conflict with democratic ideals of openness whether within or across state boundaries.  It was, moreover, especially sensitive since at that time the EU lacked either a Commissioner responsible for pillar III or an over-arching, easily identifiable European Minister of Justice and Home Affairs who could be held publicly to account for measures taken at EU level in this broad, acutely sensitive multi-dimensional policy arena. Moreover, member states had different and conflicting positions regarding the public’s ‘right to know’ and closed systems (like the UK ) clashed with the more open systems (like those in Finland and Sweden ). Finding a balance was difficult and inevitably circumscribed the outcome rendering it less than optimal. The challenge of reconciling the inherent contradiction in trying to make the EU as open as possible and accountable with the need to safeguard security remains ill-understood by the public and protected by pillar III’s pronounced structural democratic deficit.[15].

3.2 Transparency as accountability –  communicating political values

Once the principle of representative government had been realised – at least in form - through successive Euro-elections and then by a series of treaty reforms that codified changes in the inter-institutional distribution of legislative authority, the old constitutional canard of what kind of organisation the EU was, came to the fore again.  This was exemplified by the debates over constitutional designs. However, The Convention on the Future of Europe’s first articles of the draft Constitutional Treaty confirm commitment to democratic values and fundamental principles derived from acceptance and tolerance of difference and diversity across the board : subsidiarity, proportionality and loyal cooperation are defined as the guiding principles governing the limits and use of Union competences (Article 8). The requirement that shared values are developed and cultural diversity respected  is set out in Article 3 which states: ‘The Union ’s aim is to promote peace, its values and the well-being of its peoples’. [16]  Article 2 lists fundamental European values. It stresses the democratic values which are designed to make people feel part of the same union. A breach of one of them would be sufficient to initiate the procedure for alerting and sanctioning the member states in question.  These values meet two criteria: they are fundamental and lie at the heart of a peaceful society practising, tolerance, justice and solidarity; and have a clear non-controversial legal basis so that member states can discern the resultant obligations which could be subject to sanction        (CONV   528/03, Annex II,p.11).

The broader requirements of rectifying the democratic deficit have an internal and external perspective.  The internal relate to structural intra-institutional relations and to inter-institutional relations.  The external concern measures to communicate to the public accountability of the EU’s decision-makers.  But communicating accountability to the public in this sense goes beyond providing for the direct election of the European Parliament by direct, universal suffrage.  It involved moving away from the idea of public passive acquiescence to an invisible hand of European integration to the idea of giving a human face to identifiable EU institutions showing their democratic accountability for their actions to the public.  This concept of public accountability underlay the efforts both of MEPs and the Commission to show that the EU was ‘open’ to and accessible by the public (Antalovsky et al),.  It also manifested itself in the idea of limiting and creating a ‘just’ balance of authority between the member states and the EU.  The Luxembourg non-paper preceding the Maastricht treaty heralded the way for references to proportionality and subsidiarity, as core elements of better law-making[17] (implying perhaps disingenuously that the more visible and close to the people affected by legislation, the more likely it would be ‘good legislation’ and the less likely they would be to find it unacceptable); and for explicit recognition to be given to the idea that national parliaments might have a role to play in respect of EU policy-making, making it more transparent, bringing it closer to the people but not necessarily improving efficiency (House of Commons).

Most critically, perhaps, the resignation of the Santer Commission and the subsequent Kinnock reforms showed that policy-makers were not above the law[18].  As the supposed custodians and guardians of the treaty and good, fair and just government in the EU, the Commission’s failings had to be publicly acknowledged especially in liberal democracies where resignation was the expected honourable public penalty for serious political failings. However, the Santer Commission’s resignation, and the ‘left-overs’ from the 1996 IGC highlighted the continuing flaws in the distribution of inter-institutional power and bolstered the pressure to alter the European Parliament’s powers and influence vis-à-vis the appointment and removal from office of the Commission (outside the scope of this paper). Transparency as demonstrated by accountability and responsiveness suggested a very different agenda to the pressure for transparency facilitated by public access to information.  In short, procedural and constitutional considerations were beginning to converge increasingly sharply.  The administrative, civil aspect of accountability became politicised and conflated with the constitutional agenda of enlargement and reform.

The display of openness coincided with the apparent belief that by making information more readily accessible to those armed with the wherewithal to seek it on the net, the EU would improve the communication of its goals and policies to the public. The implicit goal was to   counter cynicism about ‘ Europe ’ and bolster trust and confidence in European integration without engaging in overt political persuasive communication (Valentino et al) which has traditionally been seen to be the preserve of politicians in their interaction with the media. While the media had improved access, too, to broadcasting facilities in the Commission, editorial content was subject to the usual domestic vagaries and skewing.  However, investigative journalism into the demise of the Santer Commission helpfully boosted public attention and appeared to prime the public space for an open debate on future governance moderated by e-governance lines and grand constitutional forums like the Convention on the Future of Europe. While the latter had hoped to present itself as an open people’s forum through its initiation of reflection and attentiveness phases, by February 2003, its Presidium was criticised for falling short of the ideals of openness and transparency.

4.Transparency : a challenge to vigilance

4.1 Protecting or challenging  freedom?

The conflation of transparency and freedom of information is most acute  under pillar III and derives at least in part from the way in which the concept of EU citizenship came to be interpreted as implying more political rights than that enshrined in the right to participate in the election of the European Parliament but fewer than those derived from the concept of a political subject deriving in turn from the idea of people or nation. The absence of the latter impelled a legal interpretation to enable ‘citizens’ (entitled to form the political subject) to be differentiated from those enjoying social and human rights granted by the State. In the EU, those not enjoying full political rights for whatever reasons cannot be defined as ‘citizens’ (Closa, Magnette, Shaw 1998). Nationality of a member state is the sine qua non of the enjoyment of EU citizenship. The conferral of nationality remains a member state’s prerogative. Community law on citizenship takes direct effect.  The enjoyment of citizenship flows essentially from all Community legislation rather than from belonging to an EU ‘nation’. This inverts the process in federal systems.   This remains, even after the conclusion of the EU’s Charter on Fundamental Rights[19], a potent source of argument (McCrudden, de Burca, 2001:129), notably in respect of the position of legal and illegal EU residents, asylum seekers, refugees, and new member states[20]. Article 7 TEU obliges member states to respect fundamental rights at the time of accession, and to comply with them once membership is attained.  The draft Constitutional treaty confirms the current definition of citizenship of the Union as additional to national citizenship, provides for gender equality, and confirms existing rights and duties provided for in the draft Constitution.(article 7) While transparency and rendering the EU open, accessible, accountable and attentive are supposed to safeguard democratic governance and protect collective and individual liberties, the wider goal of sustaining an area of freedom, security and justice is endangered arguably by the requirements of secrecy under pillar III.

Equally problematic is the issue of how the Commission can best safeguard citizens’ interests. It is aware of the potential erosion of individual privacy and human rights by the abuse of large-scale intelligence information and intelligence gathering activities by various groups. Commissioner Liikanen told the European Parliament in September 2001 that, as guardian of the treaty, the Commission attached ‘the utmost importance’ to respect for human rights and fundamental freedoms and supported the incorporation of EU commitments into the treaties  (art 6 TEU and the EU Charter of Fundamental Rights): ‘Privacy is a fundamental right. Any derogation…has to be specifically provide for by law, necessary for the objectives of general interest, proportionate, and subject to adequate checks and guarantees against any form of misuse’[21].  State security interests falling under Title V elude this Commission guarantee.  MEPs and the Commission agreed that data gathered by Echelon type systems could be passed to commercial bodies for purposes not related to the prevention of crime or state security and, in those instances, should be subject to EU data protection directives[22]. They advocated a European Information Security policy.  The Commission had already devised one for its own internal use that formed the basis of that for the Council. Both called for close co-operation between European and national security organisations, though the position of private security agencies (and the Commission’s own raft of new regulatory offices) was subsequently to prove problematic.  The Belgian Presidency proposal for a pillar III framework decision on the retention of traffic data and access to this data in connection with criminal investigations and prosecutions proved especially controversial since to maximise the chances of operational success, all states had to abide by the same rules.  No opt-outs for whatever reason are permissible.

The clash between the ideals of guaranteeing human rights and fundamental freedoms and security requirements (and especially intelligence gathering agencies) is illustrated by EU measures taken since September 2001 to promote judicial co-operation in criminal matters via Articles 38 and 24 TEU; and Art 38 TEU, on penal cooperation on terrorism with the USA .[23] Parliamentary input is absent : Art 24 TEU provides for the conclusion of agreements under Title VI ‘police and judicial cooperation in criminal matters.’ Art 38 TEU states: ‘….. Such agreements shall be concluded by the Council acting unanimously on a recommendation from the Presidency…  The provisions of this Article shall also apply to matters falling under Title VI.’

The 1998 Vienna Action Plan had already stressed the need to accelerate cooperation in criminal matters among the member states and with third countries and ‘where necessary approximation of legislation’. The broad scope of any such resulting legislation (on organised crime from trafficking, rape, murder, racism, forgery, car crime to sabotage and terrorism) has extensive implications for individual liberties. The Council insists that protecting the public interest outweighs the interests of democratic control[24].Clearly, if legislation evades parliamentary scrutiny, it adds to the claim that the EU is far from transparent.

4.2 : Transparency as Attentiveness : A Challenge to e-governance

Then Commission President Delors signalled the interpretation of transparency as attentiveness in 1992. He advocated inventiveness in the cause of simplicity, clarity, redoubling of Commission efforts ‘at explaining what we do’, and ‘greater transparency’ to improve the working of the European Community and to bring it closer to its citizens[25].  The Commission began by identifying a series of initial steps to increase the transparency of its work, including the seeking of wider-ranging advice, at an early stage, on key proposals through recourse to ‘green papers’ prior to the preparation of formal proposals; swifter publication of Commission documents soon after their adoption; and improving Commission communication with and information to the public.[26] The Commission’s Guide to Access to Commission documents[27] states that the fundamental principle is that the public will have the widest possible access to documents held by the Commission with certain exemptions to protect public and private interests. ‘Access to documents is a key element in the Commission’s policy on openness, which aims to stimulate a debate on Community affairs based on full knowledge of the facts’.

This was mirrored in 1995 by Council assurances, spurred by Danish and Swedish government pressure, to ‘work towards greater transparency of its proceedings...while maintaining the effectiveness of the decisionmaking process’.  It agreed to make votes on legislative acts public; to hold more frequent debates broadcast to the public (‘open debates’) on  ‘important matters affecting the interests of the Union or on major new legislative proposals’ to be held at the start of each Presidency. It instructed Coreper to consider the conditions under which public access to Council minutes could be facilitated.[28] A year later, it confirmed its intention to facilitate swifter processing of requests for access to Council documents[29].

The concern that the Commission, MEPs and member governments had over the public reception of the Maastricht and Amsterdam treaties impelled efforts to make the EU both more visible, user-friendly and attentive.  Accountability had a counterpart in attentiveness: the idea of a ‘listening EU’ was conceived.  The detail of this is outside the scope of this paper, however, in it lay the genesis of the process by which the public came to be involved in deliberations leading to the Charter of Fundamental Rights and then the Convention on the Future of Europe (Lenaerts and E De Smijter, Feus).  Both explicitly sought citizens’ views, whether mediated by political parties, voluntary sector groups or directly. Both represented an advance on earlier practices epitomised by MEPs acting in responsive mode to citizens’ dissatisfaction as expressed in petitions to the European Parliament, complaints to the Commission, and more recently to the Ombudsman .

Phase One of the Convention on the Future of Europe was dubbed, by the CFE President, the listening phase.  The counterpart to listening must be reflection on what is said and ultimately some explicit acknowledgement and incorporation of citizens’ viewpoints in the final output.   It is echoed in the opening articles of the draft Treaty on a Constitution for Europe : Title 1 Article 1 begins:

Reflecting the will of the peoples and the States of Europe to build a common future, thereby implying that attention has been paid to what the people had to say.

The opportunities opened by the internet to make the EU both more accessible in terms of the availability, visibility and accessibility of information were exploited to bring the EU closer to its citizens. Accordingly, the EU’s decision-makers were to be shown to be visible, accountable, accessible and attentive by dint of e-chats as well as real time e-conferencing, with citizens as well as the feedback and other e-Europe mechanisms set up over the past few years[30].  The Presidency websites seem increasingly popular. [31]   Commissioners, such as Pascal Lamy when launching the EU trade dialogue in November 2002, also appear to see such participation as enhancing both the transparency and legitimacy of their actions[32].  Whether or not this by itself will boost EU legitimacy is doubtful.  E-political activity is notoriously self-selecting but the idea that citizens can ‘communicate’ authoritatively and directly with the ‘government’ may augment public expectations that public authorities have a duty to be attentive, accessible, visible, responsive and accountable.  Recognising the tension between the openness offered by cyber-space – and the potential for abusing it for criminal purposes (ranging from racism, pornography to  fraud)  and the need to preserve individual freedom and collective security, the Commission launched an EU cyber security agency in February 2003. It is to rapidly react against high level computer threats and crimes and supplements EU legislation and measures brought in since 1998. Balancing accountability and transparency here will again prove problematic whether or not a genuine EU-wide public sphere emerges in cyber space. However, e-governance poses particular challenges both to sustaining transparency and especially to the creation of a civic commons in cyberspace.(Blumler, 2).

CONCLUSION

Transparency measures are imperfect. It is obvious that in security matters, operational needs for confidentiality and secrecy are essential to maximising the chances of a successful outcome.  However, a balance has to be struck between that and freedom of information. If the reasons why access to information are unclear, or are not seen to be legitimate, justifiable or well-founded, then public scepticism over EU policymakers’ and policy enforcers’ intentions cannot be easily boosted by measures purporting to make the EU policymaking process more transparent, accessible, accountable and democratic. Moreover, many steps taken by the EU designed to enhance public confidence and trust in the institutions of the EU and the processes of EU governance inadvertently compromise them. Scepticism over the usefulness of accessing MEPs, the Ombudsman, or officials (online or otherwise) cannot be overcome simply by making a website easy to access and to use.   Transparency of information needs a counterpart in feedback: if public and interested parties are invited to give their views, will they come to expect the accommodation of those views, not via the traditional channels of deliberative parliamentary democracy but via the more immediate channel of a website ‘hit’? Will this, combined with judicial activity, boost the emergence of a public sphere and EU identification?

The shape and form of open government is present in the constitutionalisation of the EU.  Democratic idealism is evident.  Internal procedures are being refined to improve the efficiency of decision making.  These may expedite decisions even when co-decision becomes increasingly tortuous as the EU enlarges, but they may not convince the public that European integration and decision making is improving and is more open.  If anything, the more internal, invisible procedures are introduced, the more likely it is that the post-parliamentary anxiety of visible politicians becoming little more than the voice of invisible decision makers may take hold. Even the Danish Presidency in September 2002  decided to investigate the ‘fast track’ (secret) procedure whereby Commission and Council officials and MEP rapporteurs (in a trialogue) try and expedite EP agreement at first reading stage[33]. (Imbeni, et.al). Thus the shape and form of open, transparent government may be there, but not always the content. The Convention on the Future of Europe tried to address this in draft Article 7 of the Constitutional Treaty by moving the issue of the right of access to documents of the institutions (currently Article 225 of the TEC) to the Titles on ‘the democratic life of the Union’ or ‘Union Institutions’ of the Constitutional Treaty being drafted now[34].

Referendums on major public issues would deflect attention from these adventures into European integration but they are insufficient in themselves to ensure that transparency is real in all its dimensions.  Without that reality, EU governance that sustains a lack of transparency on matters closest and most visible to citizens – the internal security agenda being a good example – smacks of escapologist adventurism.    That cannot augur well for the public reception of the conclusions of the Convention on the Future of Europe and subsequent constitutional reform in an enlarging EU.  As the Final report of the Convention on the Future of Europe’s Working Group IX on Simplification stated:’Citizens must be able to understand the system so that they can identify its problems, criticise it, and ultimately control it’.[35]